S & H v R [2011] EWCA Crim 2872 (13 December 2011)

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Cite as: [2011] EWCA Crim 2872, [2012] Crim LR 449, [2012] 1 Cr App R 19, [2012] 1 WLR 1700, [2012] 2 All ER 793

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		Neutral Citation Number: [2011] EWCA Crim 2872
		Case No: 201103762 B5

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MAIDSTONE
HHJ GOLD QC
T20117020, T20117021, T20117027

Royal Courts of Justice
Strand, London, WC2A 2LL

13/12/2011

B e f o r e :

LORD JUSTICE HOOPER
MR JUSTICE SUPPERSTONE
and
SIR GEOFFREY GRIGSON
(sitting as a judge of the Court of Appeal Criminal Division)
____________________

Between:

	S & H	Appellants
	- and -
	THE CROWN	Respondent

____________________

MR. G. P. KING appeared for the Appellant S
MR. N. RASIAH appeared for the Appellant H
MR. D. PERRY QC, MR. A. ROOKE and MR. A. WALKER appeared for the Respondent
Hearing date: 19th October 2011
____________________

HTML VERSION OF JUDGMENT
____________________

THERE ARE RESTRICTIONS ONLY ON THE PUBLICATION OF

PARAGRAPHS 95-109

Lord Justice Hooper:

During the hearing we granted leave (unopposed by the respondent) and announced our decision at the end of the hearing that the principal grounds of appeal which related to the compatibility of section 46 of the Serious Crime Act 2007 with the European Convention of Human Rights ("ECHR") failed. We now give our reasons for that conclusion. There is a quite separate ground relating to one of the judge's rulings which we examine at the end of this judgment in a judgment given by Sir Geoffrey Grigson.

OS and ZH are charged on Count 1 with an offence against section 46. Count 1 reads:

STATEMENT OF OFFENCE

ASSISTING IN THE SUPPLY OF CLASS A OR CLASS B CONTROLLED DRUGS, contrary to section 46 of the Serious Crime Act 2007.

PARTICULARS OF OFFENCE

[OS and ZH], between the 1^st day of January 2009 and the 8^th day of June 2010, did an act, namely the supplying of benzocaine, lignocaine, hydrochloric acid, sulphuric acid and other chemicals and pharmaceuticals as cutting agents, which was capable of assisting one or more offences of supplying/being concerned in the supply of class A or class B controlled drugs, believing that one or more of those offences would be committed and that their act would assist in the commission of one or more of the said offences.

During the course of a preparatory hearing the appellants submitted that section 46 was incompatible with Article 7 of the ECHR in that it was too vague and uncertain and that the trial on that Count should therefore be stayed as an abuse of process. It was and is the appellants' case that it is not "possible to arrive at a workable and intelligible interpretation of" section 46. The judge, HHJ Gold QC, ruled against that submission.

It is not necessary for us to consider the authorities on Article 7 because in our view section 46 as we interpret it, is neither vague nor uncertain. See R v Rimmington [2006] 1 AC 459. This interpretation also disposes of any issues that might otherwise have arisen as to the compatibility of section 46 and Article 6 of the ECHR.

The facts may be briefly stated. It is alleged that the appellants were concerned with a national distribution business supplying chemical cutting agents (e.g. benzocaine; lignocaine and other chemicals) direct to drug dealers and to regional distributors of cutting agents. It is alleged that the supply of the cutting agents was capable of assisting one or more offences of supplying/being concerned in the supply of class A or class B controlled drugs and that the appellants believed that one or more of those offences would be committed and that their act would assist in the commission of one or more of the said offences.

Section 46 forms part of Part 2 of the Act, which is headed Encouraging or Assisting Crime, Inchoate offences. Part 2 abolished the common law offence of incitement (see section 59) and replaced it with three new offences: intentionally encouraging or assisting an offence (section 44); encouraging or assisting an offence believing it will be committed (section 45); encouraging or assisting offences believing one or more will be committed (section 46). In the words of the respondent:

These three offences were largely derived from proposals made by the Law Commission in their report, Inchoate Liability for Assisting and Encouraging Crime (Law Com. No. 300, CM 6878, July 2006). This report was followed by the Law Commission's report: Participating in Crime (Law Com. No. 305, Cm 7084, May 2007). The two reports were intended to provide the basis for the reform of the law of incitement and secondary party liability generally, and would have led to the creation of a total of eight new offences. As things stand, no legislative changes have been made in response to the Law Commission's second report.

The Law Commission took the view that the common law offence of incitement was defective in particular in that the offence of incitement would not be committed if D assisted P to commit an offence without also encouraging him and P did not commit that offence.

Clauses 1 and 2(1) of the Law Commission's draft Bill contained the offence of encouraging or assisting a criminal act intentionally or believing that that it would be done. Clause 2(2) contained a separate offence of encouraging or assisting criminal acts believing that one or more of them will be done and that his act would encourage or assist the doing of that act. Part 2 of the 2007 Act did not follow the draft Bill in its entirety although the Law Commission's proposals were influential in its drafting. Part 2 did not adopt 3(4) which provided that a person may not be prosecuted in relation to the same Act for more than one offence under clause 2(2). Clause 2(2) and section 46 of the Act bear some similarity to one of the rules governing secondary liability which was considered in Maxwell v Director of Public Prosecutions [1978] 1 W.L.R. 1350; (1979) 68 Cr. App. R. 128 and the Law Commission uses the facts of Maxwell as an example (page 135). It must be remembered however that secondary liability can only be established upon proof of the commission of the principal offence, whereas the sections 45-46 offences are designed to cover the situation where no principal offence is committed. The headnote to Maxwell in the W.L.R. reads:

"The defendant was a member of an organisation that used firearms and bombs to carry out attacks against Roman Catholics and their property. He was told by a member of the organisation to drive his car to an inn in the locality where he lived in such a manner that he acted as guide to a following car [a Cortina] containing three or four men, who were strangers to the area. Having reached the inn, he drove off and one of the men in the following car placed a bomb with a burning fuse in the hallway of the inn. The landlord's son was able to detach the detonator and fuse from the bomb and throw them into the road where the detonator exploded. The defendant later learnt that what he described as a "job" for the organisation was in fact an attempt to bomb the inn. He was charged and convicted of unlawfully and maliciously doing an act with intent to cause an explosion likely to endanger life, contrary to section 3 (a) of the Explosive Substances Act 1883 and possession of the bomb, contrary to section 3 (b) of the Act. ..."

The appellant's appeal against conviction was dismissed by the Court of Appeal of Northern Ireland and by the House of Lords.

The trial judge had described the appellant's state of mind in this way:

"… the facts of this case make it clear to me that the accused knew the men in the Cortina car were going to attack the inn and had the means of attacking the inn with them in their car. The accused may not, as he says, have known what form the attack was going to take, but in my judgment he knew the means of the attack, be they bomb, bullet or incendiary device, were present in that car."

In the words of Lord Scarman, who alone expressed the view that the Court of Criminal Appeal in Northern Ireland had gone further than the Court of Criminal Appeal for England and Wales had found it necessary to go in Bainbridge [1960] 1 Q.B. 129, said:

"Upon the facts as found by the trial judge ... , the appellant knew he was guiding a party of men [in the Cortina] to the Crosskeys Inn on a U.V.F. military-style "job," i.e. an attack by bomb, incendiary device or bullet on persons or property. He did not know the particular type of offence intended, but he must have appreciated that it was very likely that those whom he was assisting intended a bomb attack on the inn.

If the appellant contemplated, as he clearly did, a bomb attack as likely he must also have contemplated the possibility that the men in the car, which he was leading to the inn, had an explosive substance with them. Though he did not know whether they had it with them or not, he must have believed it very likely that they did. In the particular circumstances of this case, the inference that the two offences of possessing the explosive and using it with intent to cause injury or damage were within the appellant's contemplation is fully justified upon the evidence."

In Smith and Hogan's Criminal Law, 13th Ed by Professor D Ormerod, page 210, Maxwell is explained in the following way:

"In DPP for Northern Ireland v Maxwell the House of Lords recognized the full effect of the principle in Bainbridge: that there was no strict requirement that D knows the precise offence P will commit. D assisted P by intentionally driving him to a pub, realizing that P intended to commit one or more of a number of offences, including: planting a bomb at the pub, shooting people at the pub or committing a robbery at the pub. In fact, P intended to plant, and did plant, a bomb there. D was liable as an accessory to that offence. The principle derived from Maxwell is that if D gives assistance to P, knowing that P intends to commit a crime, foreseeing that it is one or more of crime X, or crime Y, or crime Z, but being uncertain as to which, D will be liable as a secondary party to whichever of those crimes P in fact commits."

We come back to this later: see paragraph 52 below.

Part 2

Section 44 provides:

Intentionally encouraging or assisting an offence

(1) A person commits an offence if--

(a) he does an act capable of encouraging or assisting the commission of an offence; and

(b) he intends to encourage or assist its commission.

(2) But he is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act.

Section 45 provides:

Encouraging or assisting an offence believing it will be committed

A person commits an offence if--

(a) he does an act capable of encouraging or assisting the commission of an offence; and

(b) he believes--

(i) that the offence will be committed; and

(ii) that his act will encourage or assist its commission.

Section 46 provides:

46. Encouraging or assisting offences believing one or more will be committed

(1) A person commits an offence if--

(a) he does an act capable of encouraging or assisting the commission of one or more of a number of offences; and

(b) he believes--

(i) that one or more of those offences will be committed (but has no belief as to which); and

(ii) that his act will encourage or assist the commission of one or more of them.

(2) It is immaterial for the purposes of subsection (1)(b)(ii) whether the person has any belief as to which offence will be encouraged or assisted.

(3) If a person is charged with an offence under subsection (1)--

(a) the indictment must specify the offences alleged to be the "number of offences" mentioned in paragraph (a) of that subsection; but

(b) nothing in paragraph (a) requires all the offences potentially comprised in that number to be specified.

(4) In relation to an offence under this section, reference in this Part to the offences specified in the indictment is to the offences specified by virtue of subsection (3)(a).

Section 47 provides:

Proving an offence under this Part

(1) Sections 44, 45 and 46 are to be read in accordance with this section.

(2) If it is alleged under section 44(1)(b) that a person (D) intended to encourage or assist the commission of an offence, it is sufficient to prove that he intended to encourage or assist the doing of an act which would amount to the commission of that offence.

(3) If it is alleged under section 45(b) that a person (D) believed that an offence would be committed and that his act would encourage or assist its commission, it is sufficient to prove that he believed--

(a) that an act would be done which would amount to the commission of that offence; and

(b) that his act would encourage or assist the doing of that act.

(4) If it is alleged under section 46(1)(b) that a person (D) believed that one or more of a number of offences would be committed and that his act would encourage or assist the commission of one or more of them, it is sufficient to prove that he believed-

(a) that one or more of a number of acts would be done which would amount to the commission of one or more of those offences; and

(b) that his act would encourage or assist the doing of one or more of those acts.

(5) In proving for the purposes of this section whether an act is one which, if done, would amount to the commission of an offence –

(a) if the offence is one requiring proof of fault, it must be proved that-

(i) D believed that, were the act to be done, it would be done with that fault;

(ii) D was reckless as to whether or not it would be done with that fault; or

(iii) D's state of mind was such that, were he to do it, it would be done with that fault; and

(b) if the offence is one requiring proof of particular circumstances or consequences (or both), it must be proved that--

(i) D believed that, were the act to be done, it would be done in those circumstances or with those consequences; or

(ii) D was reckless as to whether or not it would be done in those circumstances or with those consequences.

(6) For the purposes of subsection (5)(a)(iii), D is to be assumed to be able to do the act in question.

(7) In the case of an offence under section 44--

(a) subsection (5)(b)(i) is to be read as if the reference to "D believed" were a reference to "D intended or believed"; but

(b) D is not to be taken to have intended that an act would be done in particular circumstances or with particular consequences merely because its being done in those circumstances or with those consequences was a foreseeable consequence of his act of encouragement or assistance.

(8) Reference in this section to the doing of an act includes reference to—

(a)    a failure to act;

(b)    the continuation of an act that has already begun;

(c)    an attempt to do an act (except an act amounting to the commission of the offence of attempting to commit another offence).

(9) In the remaining provisions of this Part (unless otherwise provided) a reference to the anticipated offence is—

(a) in relation to an offence under section 44, a reference to the offence mentioned in subsection (2); and

(b) in relation to an offence under section 45, a reference to the offence mentioned in subsection (3).

All counsel agree that section 47(8)(c) can have no application to section 45 or section 46. ^[1]

We should mention section 64 which provides:

Encouraging or assisting the commission of an offence

A reference in this Part to encouraging or assisting the commission of an offence is to be read in accordance with section 47.

Section 48 provides:

Proving an offence under section 46

(1) This section makes further provision about the application of section 47 to an offence under section 46.

(2) It is sufficient to prove the matters mentioned in section 47(5) by reference to one offence only.

(3) The offence or offences by reference to which those matters are proved must be one of the offences specified in the indictment.

(4) Subsection (3) does not affect any enactment or rule of law under which a person charged with one offence may be convicted of another and is subject to section 57.

Section 49 provides, in part:

Supplemental provisions

(1) A person may commit an offence under this Part whether or not any offence capable of being encouraged or assisted by his act is committed.

(2) If a person's act is capable of encouraging or assisting the commission of a number of offences--

(a) section 44 applies separately in relation to each offence that he intends to encourage or assist to be committed; and

(b) section 45 applies separately in relation to each offence that he believes will be encouraged or assisted to be committed.

(3) A person may, in relation to the same act, commit an offence under more than one provision of this Part.

(4) In reckoning whether--

(a) for the purposes of section 45, an act is capable of encouraging or assisting the commission of an offence; or

(b) for the purposes of section 46, an act is capable of encouraging or assisting the commission of one or more of a number of offences;

offences under this Part and listed offences are to be disregarded.

(5) "Listed offence" means--

(a) in England and Wales, an offence listed in Part 1, 2 or 3 of Schedule 3; and

(b) in Northern Ireland, an offence listed in Part 1, 4 or 5 of that Schedule.

(6) The Secretary of State may by order amend Schedule 3.

(6A)^[2]

(7) For the purposes of sections 45(b)(i) and 46(1)(b)(i) it is sufficient for the person concerned to believe that the offence (or one or more of the offences) will be committed if certain conditions are met.

Section 50 provides for a reasonableness defence. Section 51 provides for a defence for victims. Section 51(A) introduced, by amendment, an exception to the application of section 44 to an offence of encouraging or assisting suicide.

Section 52 makes provision for the jurisdiction of the courts of England and Wales and Northern Ireland. It is very broad in its ambit. Sections 53 and 54 make provision for the requirement of consent before prosecuting for certain offences and in section 54 also makes special provision for persons providing certain "information society services".

Section 55 deals with mode of trial. Section 46 offences may only be tried on indictment.

Section 56 deals with the situation where a defendant charged with what is described as an inchoate offence against sections 44, 45 or 46 is proved to have committed either the anticipated offence (sections 44 and 45) or an offence specified in the indictment (section 46) but it is not proved which. In that situation he may be convicted of the inchoate offence, but not (it seems) otherwise, subject to section 56(2). This provides that a person is not to be treated as having committed the anticipated offence (sections 44 and 45) or an offence specified in the indictment (section 46) merely because he aided, abetted, counselled or procured its commission. Thus (it seems), by virtue of section 56(2) a person who commits an offence against section 44, 45 and 46 may be convicted of that offence although he also committed the anticipated offence or an offence specified in the indictment by way of secondary participation. Although this section needs no further discussion for the purposes of this appeal, it is important for trial judges to be aware of it.

Section 57 deals with alternative verdicts and guilty pleas. It is (like other sections) complex but it is an important section for the purposes of this appeal. It provides:

Alternative verdicts and guilty pleas

(1) If in proceedings on indictment for an offence under section 44 or 45 a person is not found guilty of that offence by reference to the specified offence, he may be found guilty of that offence by reference to an alternative offence.

(2) If in proceedings for an offence under section 46 a person is not found guilty of that offence by reference to any specified offence, he may be found guilty of that offence by reference to one or more alternative offences.

(3) If in proceedings for an offence under section 46 a person is found guilty of the offence by reference to one or more specified offences, he may also be found guilty of it by reference to one or more other alternative offences.

(4) For the purposes of this section, an offence is an alternative offence if--

(a) it is an offence of which, on a trial on indictment for the specified offence, an accused may be found guilty; or

(b) it is an indictable offence, or one to which section 40 of the Criminal Justice Act 1988 (c 33) applies (power to include count for common assault etc in indictment), and the condition in subsection (5) is satisfied.

(5) The condition is that the allegations in the indictment charging the person with the offence under this Part amount to or include (expressly or by implication) an allegation of that offence by reference to it.

(6) Subsection (4)(b) does not apply if the specified offence, or any of the specified offences, is murder or treason.

(7) In the application of subsection (5) to proceedings for an offence under section 44, the allegations in the indictment are to be taken to include an allegation of that offence by reference to the offence of attempting to commit the specified offence.

(8) Section 49(4) applies to an offence which is an alternative offence in relation to a specified offence as it applies to that specified offence.

(9) In this section--

(a) in relation to a person charged with an offence under section 44 or 45, "the specified offence" means the offence specified in the indictment as the one alleged to be the anticipated offence;

(b) in relation to a person charged with an offence under section 46, "specified offence" means an offence specified in the indictment (within the meaning of subsection (4) of that section), and related expressions are to be read accordingly.

(10) A person arraigned on an indictment for an offence under this Part may plead guilty to an offence of which he could be found guilty under this section on that indictment.

(11) This section applies to an indictment containing more than one count as if each count were a separate indictment.

(12) This section is without prejudice to--

(a) section 6(1)(b) and (3) of the Criminal Law Act 1967 (c 58);

(b) section 6(1)(b) and (2) of the Criminal Law Act (Northern Ireland) 1967 (c 18).

Section 58 makes provision for penalties on conviction. The maximum sentence for a section 44-46 offence is, in effect, the appropriate sentence for the offence encouraged or assisted (although in the case of murder, imprisonment for life is not mandatory).

Penalties

(1) Subsections (2) and (3) apply if--

(a) a person is convicted of an offence under section 44 or 45; or

(b) a person is convicted of an offence under section 46 by reference to only one offence ("the reference offence").

(2) If the anticipated or reference offence is murder, he is liable to imprisonment for life.

(3) In any other case he is liable to any penalty for which he would be liable on conviction of the anticipated or reference offence.

(4) Subsections (5) to (7) apply if a person is convicted of an offence under section 46 by reference to more than one offence ("the reference offences").

(5) If one of the reference offences is murder, he is liable to imprisonment for life.

(6) If none of the reference offences is murder but one or more of them is punishable with imprisonment, he is liable--

(a) to imprisonment for a term not exceeding the maximum term provided for any one of those offences (taking the longer or the longest term as the limit for the purposes of this paragraph where the terms provided differ); or

(b) to a fine.

(7) In any other case he is liable to a fine.

(8) Subsections (3), (6) and (7) are subject to any contrary provision made by or under--

(a) an Act; or

(b) Northern Ireland legislation.

(9) In the case of an offence triable either way, the reference in subsection (6) to the maximum term provided for that offence is a reference to the maximum term so provided on conviction on indictment.

Sections 59-63 are not relevant to this appeal.

We have already set out the provisions of section 64 (para. 19 above).

Section 65 provides:

Being capable of encouraging or assisting

(1) A reference in this Part to a person's doing an act that is capable of encouraging the commission of an offence includes a reference to his doing so by threatening another person or otherwise putting pressure on another person to commit the offence.

(2) A reference in this Part to a person's doing an act that is capable of encouraging or assisting the commission of an offence includes a reference to his doing so by--

(a) taking steps to reduce the possibility of criminal proceedings being brought in respect of that offence;

(b) failing to take reasonable steps to discharge a duty.

(3) But a person is not to be regarded as doing an act that is capable of encouraging or assisting the commission of an offence merely because he fails to respond to a constable's request for assistance in preventing a breach of the peace.

Section 66 provides:

Indirectly encouraging or assisting

If a person (D1) arranges for a person (D2) to do an act that is capable of encouraging or assisting the commission of an offence, and D2 does the act, D1 is also to be treated for the purposes of this Part as having done it.

Finally section 67 provides:

Course of conduct

A reference in this Part to an act includes a reference to a course of conduct, and a reference to doing an act is to be read accordingly.

The section 46 offence

As may have already become, clear the provisions creating and defining section 46 are very complex. The oral hearing in this appeal was listed for half a day but took one day. Since the hearing we have asked counsel for further written submissions and we are grateful to counsel for having spent so much extra time on those submissions.

What are then the ingredients of a section 46 offence, at least in so far as relevant to this appeal and when should section 46 be used?

D must have done an act, which can be a course of conduct (section 67). Section 65(2)(b) further elaborates on the meaning of the word act. It includes a failure to take reasonable steps to discharge a duty, other than any duty which arises or may arise from a constable's request for assistance.

D's act must objectively be capable of encouraging or assisting the commission of one or more of a number of offences.

Section 46 should only to be used when the prosecution allege that D's act is capable of encouraging or assisting more than one offence. This requirement is imposed by section 46(3)(a). By virtue of section 46(3)(a), the indictment ^[3] or the relevant count in the indictment, if more than one count, must specify the offences alleged to be the "number of offences". If the prosecution wish to allege that D's act was capable of encouraging or assisting the commission of offences X, Y and Z, those three offences must be identified in the indictment (or count).^[4] By virtue of section 46(4) the offences which by virtue of section 46(3)(a) must be specified in the indictment (or count) are described in Part 2 as "offences specified in the indictment."

The fact that D's act may have been capable of encouraging or assisting the commission of some other offence, for example, criminal damage does not matter: see section 46(3)(b). But D could not be convicted of the section 46 offence in relation to criminal damage if criminal damage is not specified in the indictment.

Although the indictment need only specify two offences and could specify any number greater than two, we shall assume for the purposes of explaining the section 46 offence that the indictment specifies offence X, which is punishable by life imprisonment, offence Y which is punishable by 14 years' imprisonment and offence Z which is punishable by 10 years' imprisonment.

Section 46 should only be used, and needs only to be used, when it may be that D, at the time of doing the act, believes that one or more of either offence X, or offence Y or offence Z will be committed, but has no belief as to which one or ones of the three will be committed. To take an example. D gives P a gun. Giving P a gun is, we shall assume, capable of encouraging or assisting the commission of offences X, Y and Z and the prosecution specify those three offences in the indictment. If it may be that D, at the time of giving the gun, believes that one or more of offences X, Y and Z will be committed but has no belief as to which will be committed, section 46 should be used. The Law Commission Report reveals that section 46 is thought to be necessary because of a belief that if, in these circumstances, D is charged with three section 45 offences, one in relation to X, one in relation to Y and one in relation to Z, D would have to be acquitted of each section 46 offence if he believed that one of the three offences, X, Y and Z, would be committed but he did not know which one.

We have to say that, if this is right, then we feel that the result could have been obtained in an easier manner by making it clear, for example, that this would not be a defence to a section 45 offence.

Mr Perry suggests that in the example which we are using, it would be better practice to have a separate 46 count for X, Y and Z.

In the case with which we are concerned that would be achieved by the statement of offence referring only to class A drugs in the first count and referring only to class B drugs in a second count but otherwise remaining the same, other than the inclusion of the words (as Mr Perry suggests) "but having no belief as to which" after the words: "believing that one or more of those offences would be committed".

The jury could then find the defendants guilty or not guilty of either or both of the two counts.

We agree with Mr Perry that, at least if there is to be a trial, it would be better practice to have a separate 46 count for X, Y and Z. Indeed, we would go further and say that there should always be separate counts if D pleads not guilty (albeit that the failure to do so would not of itself affect the safety of the conviction).

We should add that Mr King, in his final written submissions, pointed out that Mr Perry had, during the hearing of the appeal, suggested that the right way to solve the problem was to ask the jury to identify, by reference to which specified offence, the jury found the defendant guilty. He submits that Mr Perry's submission that there should be separate counts was included only in the written submissions requested by the Court following the hearing and that to adopt those submissions would be unfair to the appellant who would feel "justifiably aggrieved if the judgment does not reflect the written and oral submissions advanced during the course of the hearing on 19^th October 2011". We see nothing unfair in accepting Mr Perry's submissions which are no more than a sensible refinement of his submissions that the jury should be asked to identify, by reference to which specified offence, the jury found the defendant guilty.

We shall explain later in the judgment the difficulties which will be caused if separate counts are not used.

For the purposes of understanding the ingredients of the section 46 offence other than those to which we have already referred, let us assume that we have three counts contrary to section 46 of encouraging or assisting,^[5] in count 1, offence X, in count 2, offence Y and in count 3, offence Z.

D cannot be convicted of count 1 (the other ingredients being satisfied) unless at the time of doing the act:

a. Either

(i) D believes that X will be committed; or

(ii) D believes that one or more of the offences specified in the indictment (X, Y and Z) will be committed but has no belief as to which; and

b. D believes that his act will encourage or assist the commission of X; and

c. D believes that X will be committed with the necessary fault for X.

We understand that Mr Perry is in general agreement with this. We were at first of the view that Part 2 is so drafted that D could be convicted of a section 46 offence by reference to an offence without necessarily believing that his act would encourage or assist that offence or without believing that that offence would be committed with the necessary fault. We shall briefly explain why. By virtue of section 46, D commits an offence against section 46 if he believes that one or more of the offences specified in the indictment will be committed (but has no belief as to which) and that his act will encourage or assist the commission of one or more of them, it being immaterial whether D has any belief as to which specified offence will be encouraged or assisted (section 46(2)). Thus, on a literal interpretation, D commits the section 46 offence if he believes that only specified offence Y will be committed and believes that his act will encourage or assist the commission of specified offence Z. Likewise section 48(5) provides that it is sufficient to prove the mens rea requirements by reference to only one of the specified offences. That this literal interpretation is not the correct interpretation is demonstrated by section 57 and 58. By virtue of these sections, D, to be found guilty of the section 46 offence, must be found guilty by reference to a specified offence (or alternative offence). Only by knowing what the specified offence is do we know what the maximum punishment will be. (He can of course be found guilty by reference to more than one specified offence).

We were also at first concerned whether the inclusion of the words in section 46(1)(b)(ii) "but has no belief as to which" meant that the section 46 offence would not be committed if it became clear that D only had one offence in mind. Mr Rasiah submits that a literal interpretation of the phrase leads to that conclusion, and no canon of interpretation supports reading down a statement of the required state of mind found in the definition of an offence. However, Mr Perry has convinced us that those concerns were misplaced. Section 57(2) and (3) envisage that a person may be convicted of a section 46 offence by reference to only one offence.

As to the state of mind of D, namely he believes that one or more of those offences will be committed (but has no belief as to which), Mr Perry submitted that this requirement should be read as "he believes that one or more of those offences might be committed". In a note to the Court following a request for further clarification, he wrote:

However, where D's state of mind is that he believes one or more offences will be committed by P but he has no belief as to which, and it falls to a jury to decide, there is a difficulty with relying on multiple section 45 charges. This is because D may escape liability for each section 45 charge on the basis that his state of mind in relation to each offence he thought P might commit was something less than a belief it would be committed (the type of difficulty discussed in DPP for Northern Ireland v Maxwell [1978] 1 WLR 1350 and in the Law Commission Report No. 300 at paragraphs 5.90 to 5.95). This was the lacuna which section 46 was designed to address. Accordingly, the provision must be read such that D may commit an offence contrary to section 46 by reference to P's potential offence, even though D has something less than a belief that P will commit that particular offence (because D thinks P may commit a number of offences). It follows that it must be sufficient for the purposes of section 46(1)(b) that D believes that one of a number of offences might be committed by P. That is the context in which the words 'no belief as to which' appear (viz. 'it might be either'); to clarify that D need not have a belief as to exactly which offence P will commit, and that the requirement for D's belief is lower for the purposes of section 46(1)(b) than that would otherwise be required for section 45(b) (because he has no belief as to which of the specified offences P will in fact commit).

We have considerable difficulty with this proposition. In joint enterprise cases it is right to say that D may, in certain defined circumstances, be convicted of offence X if in a joint enterprise to commit offence Y, D foresees that crime X might be committed (with the necessary mens rea). Mr Rasiah submits that, since inchoate offences do not require the commission of the substantive offence, it would be wrong to introduce what he describes as "constructive liability" into section 46.

In Maxwell, a case of aiding and abetting an offence which was committed, the appellant knew the means of the attack, be they bomb, bullet or incendiary device, were present in that car. As stated in Smith and Hogan, the appellant knew that the others intended to commit one or more of a number of offences. (See paragraph 12 above).

The following example is given by the Law Commission in paragraph A.53 to illustrate clause 2(2), the precursor of section 46. A taxi driver drives a group of armed men to a public house believing that they will commit robbery (clause 2.1, now section 45) and also believing that they will commit an additional offence of violence which might be causing him actual bodily harm or causing grievous bodily harm with intent (clause 2.2).

It seems to us that to permit conviction of D for any offence which he believed might be committed is to extend the ambit of section 46 beyond that permitted by the use of the word "will". It must be remembered, however, that by virtue of section 47(4), it is sufficient to prove that D believed--

(a) that one or more of a number of acts would be done which would amount to the commission of one or more of those offences; and

(b) that his act would encourage or assist the doing of one or more of those acts.

It follows that D does not have to know that the act or acts which he believed would be done and which he believed that his act was encouraging or assisting constituted an offence. D does not have to have knowledge of the relevant criminal law. Nor does D need to know, for example, who was going to commit the offence or the identity of any victim.

In the Law Commission's taxi driver example, let us assume that D believed that acts of violence would be done which would either be of a very serious nature or of a serious nature and he does not know which. If acts of violence of a very serious nature were done, that would amount to (at least) the commission of the offence of causing grievous bodily harm (and, as we shall see, may also amount to the commission of this offence with intent). If acts of violence of a less serious nature were done, that would amount to (at least) the commission of the offence of assault occasioning actual bodily harm. Thus D could be convicted of the section 46 offence in relation to the offence of causing grievous bodily harm.

To convict D of the section 46 offence because he thought that acts of violence of a very serious nature might be done seems to us to extend the meaning of section 46 beyond the words used. We bear in mind that if the very serious acts of violence were committed, D might, in certain circumstances be an aider and abettor to the more serious offence.

Section 47(8) provides a further gloss on section 47(4). The reference to doing an act in section 47(4) includes a failure to act, see 47(8)(a). Thus if D's act (or by virtue of section 65(2)(b), subject to an exception in section 65(3), his failure to take reasonable steps to discharge a duty), is capable of encouraging or assisting the commission of an offence and D believed that P would fail to act in circumstances where the failure to act would amount to the commission of an offence and D believed that his act would encourage or assist that failure, D could have committed an offence against section 46 (subject to any other requirements and defences).

We have examined section 47(8)(a) because Mr King argued that the words in section 47(8) "the doing of an act" referred to the doing an act by D. We do not agree. In our view the section, as Mr Perry submits, relates to the doing of an act by P. Failure to act by D is dealt with in section 65(2)(b) and (3).

Section 47(8)(b) also refers to the continuation of an act already begun. That should cause no difficulty.

We turn to the mens rea of the section 46 offence in so far as it relates to the offence which D believed would be committed.

Section 47(4) as we have seen (paragraph 17 above) provides it is sufficient to prove that D believed that one or more of a number of acts would be done which would amount to the commission of one or more of those offences and that his act would encourage or assist the doing of one or more of those acts. Section 47(5) amplifies this by providing that :

(5) In proving for the purposes of this section whether an act is one which, if done, would amount to the commission of an offence--

(a) if the offence is one requiring proof of fault, it must be proved that--

(i) D believed that, were the act to be done, it would be done with that fault;

(ii) D was reckless as to whether or not it would be done with that fault; or

(iii) D's state of mind was such that, were he to do it, it would be done with that fault^[6]; and

(b) if the offence is one requiring proof of particular circumstances or consequences (or both), it must be proved that--

(i) D believed that, were the act to be done, it would be done in those circumstances or with those consequences; or

(ii) D was reckless as to whether or not it would be done in those circumstances or with those consequences.

This subsection sets out the necessary mens rea for D in relation to the offence he believes will be committed. HHJ Gold, in accordance with a submission from the prosecution, said that "the concept of recklessness, as imported by section 47(5), applies to the state of mind of the person committing the specified offence, and not the defendant". Mr Perry rightly accepts that the judge was wrong.

At the risk of over-simplification, it can be said that the section 46 offence requires proof of "full" mens rea on the part of D in relation to the offence which he believed would be committed, nothing less than subjective recklessness will do.

It is submitted by the appellants that the fact that the offence can be committed recklessly makes the offence uncertain. We do not agree. The concept of subjective recklessness is now well established and understood: see Smith and Hogan, page 118 and following.

We turn to section 57(2) and (3), which provide:

(2) If in proceedings for an offence under section 46 a person is not found guilty of that offence by reference to any specified offence, he may be found guilty of that offence by reference to one or more alternative offences.

(3) If in proceedings for an offence under section 46 a person is found guilty of the offence by reference to one or more specified offences, he may also be found guilty of it by reference to one or more other alternative offences.

Section 57(2) is dealing with the situation where D is found not guilty by reference to any offence specified in the indictment and section 57(3) is dealing with the situation where D is found guilty by reference to one or more offences specified in the indictment.

Thus in so far as the section 46 offence is concerned, a defendant is to be found guilty, and only found guilty, by reference to an offence specified in the indictment, or, as section 57(2) and (3) permit, an alternative offence, which, in simple terms, can be described as a lesser included offence of the offence specified in the indictment, e.g. manslaughter where murder is an offence specified in the indictment.

Section 57(10) and (11) make provision for pleas of guilty. They provide:

(10) A person arraigned on an indictment for an offence under this Part may plead guilty to an offence of which he could be found guilty under this section on that indictment.

(11) This section applies to an indictment containing more than one count as if each count were a separate indictment.

The Explanatory Note to subsection (10) states that it:

sets out that person (sic) may plead guilty to an offence which would be encompassed by the offence with which he was charged.

Thus a person may plead guilty to the offence by reference to a permissible alternative offence. Thus a if defendant were charged with a section 46 offence by reference to murder and rape (rather than with a separate count for each offence), he could plead guilty by reference to manslaughter and by reference to an offence of sexual assault not involving penetration, if that is a lesser included offence. The defendant could also plead guilty to the section 46 offence by reference to either one of the offences. The prosecution is not, of course, required to accept the offered lesser pleas.

However, as we shall show below, if the prosecution does not accept the pleas, there must be a trial. It is not for the judge to resolve whether the defendant committed the section 46 offence by reference to murder rather than the admitted manslaughter or assault.

Section 58 makes provision for the penalty. Section 58(1) provides:

(1) Subsections (2) and (3) apply if--

(a) ...

(b) a person is convicted of an offence under section 46 by reference to only one offence ("the reference offence").

By virtue of subsections (2) and (3), if D is convicted by the jury or pleads guilty to a section 46 offence by reference to only one offence, the reference offence, and that offence is murder, D is liable to life imprisonment (discretionary and not mandatory), otherwise D is liable to the maximum term of the reference offence.

Section 58(4) provides:

(4) Subsections (5) to (7) apply if a person is convicted of an offence under section 46 by reference to more than one offence ("the reference offences").

If one of the reference offences is murder, D is liable to imprisonment for life (subsection 5). If not and if the other reference offences are punishable by imprisonment, D is liable to be sentenced to "the longer or the longest term" of imprisonment available for the reference offences ^[7] or a fine (subsection (6). If the reference offences are punishable only by a fine, then D is liable to a fine (subsection (7)). We do not understand that the size of the fine is limited in law to the maximum fine for the reference offence.

The judge, HHJ Gold accepted the submissions of the prosecution the effect of which were that the jury could bring in a verdict of guilty to section 46 without identifying by reference to which of the specified offences the verdict related. Thus, applying the judge' view, if a person were charged with an offence against section 46 in an indictment (or count) specifying murder and other offences punishable only by say 10 years' imprisonment, it would be sufficient for the jury to bring in a verdict of guilty to section 46.

The judge took the view that this was "the kind of problem with which judges have to grapple on a regular basis." It would also follow (if the judge is right) that a defendant would be required to plead guilty to a section 46 offence in these circumstances even though he denied that he had committed the section 46 offence by reference to murder, leaving it to the judge to decide whether he had committed it by reference to murder. It would also seem to follow that if the defendant accepted that he had committed the section 46 offence in relation to assault occasioning actual bodily harm ^[8] as an alternative (included) offence to the offence of murder specified in the indictment, then it would be for the judge to decide whether he had committed the section 46 offence in relation to murder with a possible sentence of life imprisonment or assault with a maximum sentence of five years' imprisonment.

Mr Perry, who did not appear for the prosecution at the preparatory hearing, did not support the submissions made by prosecuting counsel to the judge and the judge's acceptance of them. The difficulties that could arise if, in a section 46 trial, more than one offence is listed in the statement of offence, are obvious. The jury bringing in a verdict of guilty of an offence against section 46 would have to identify the offence or offences specified in the indictment by reference to which the section 46 offence has been committed, or any alternative offence or offences. It seems likely that the jury would have to be all agreed either unanimously or by a majority as to the offence or offences specified in the indictment by reference to which the section 46 offence has been committed, or any alternative offence or offences.

We now state our conclusions about how section 46 should be approached, at the risk of over simplification.

Section 46 should only be used if it may be that it was D's belief at the time of doing the act that one or more offences will be committed but has no belief as to which.

The prosecution must identify which offences D's act was capable of encouraging and assisting and upon which it wishes to rely. Let us assume X, Y and Z. (It could be two of them or more than three of them.)

There should be a separate section 46 count for X, Y and Z, at least if there is to be a trial. The statement of offence in the first count should be worded along the following lines:

ASSISTING IN [offence X], contrary to section 46 of the Serious Crime Act 2007.

The second and third counts should refer respectively to offence Y and offence Z.

The particulars of each count should be the same and worded along the following lines:

D between the ... and ..., did an act, namely ...., which was capable of assisting one or more offences of [offence X, offence Y and offence Z) believing that one or more of those offences would be committed but having no belief as to which and that his act would assist in the commission of one or more of those offences.

D can only be convicted of the first count (offence X) if:

a. Either:

(i) D believes that X will be committed; or

(ii) D believes that one or more of the offences specified in the indictment (X, Y and Z) will be committed but has no belief as to which; and

b. D believes that his act will encourage or assist the commission of X; and

c. D believes that X will be committed with the necessary fault for X.

D can only be convicted of count 2 if he has those beliefs in relation to offence Y and count 3, if he has those beliefs in relation to offence Z.

Relevant offences alternative to offences X, Y and Z (lesser included offences) must be dealt with in the same way.

If the indictment were to include one count covering offence X, offence Y and offence Z, the same principles apply and the jury would have to be asked whether they find D guilty by reference to offence X and/or Y and/or Z, as appropriate.

Conclusions

Having interpreted the section 46 offence in the way that we have and in a manner consistent with the submissions of the respondent, we have no doubt that section 46 as interpreted in this way is not incompatible with the ECHR.

In conclusion as far as this ground is concerned we confirm the judge's decision, albeit not all his reasons and dismiss the appeal. To avoid the problems which would arise if the indictment were not split into two counts, one for class A drugs and one for class B drugs, we hope that the indictment will be amended.

It was also submitted that the count was bad for duplicity. Given that the primary legislation specifically permits the inclusion of more than one offence in the indictment, this is a hopeless argument. See also Suchedina [2006] EWCA Crim 2543; [2007] 1 Cr App R 23, paragraph 14.

It was submitted that the section unfairly criminalises those who seek to engage in lawful trade. There is nothing new in imposing secondary liability on traders: see NCB v Gamble [1959] 1 QB 11. For a recent example concerning the common law offence of incitement and the sale of items which could be used for the production of cannabis as well as for other lawful uses, see Henderson [2011] EWCA Crim 2035.

Sir Geoffrey Grigson

Bad character

In addition to the written and oral submission of the parties, we have considered the written submission of a co-defendant who did not appeal the judge's ruling.

It would appear that the fact that S and H were involved in the supply of chemicals and pharmaceuticals is not in dispute. They assert that the business was legitimate.

The central allegation made by the prosecution is that the business was wholly illegitimate. The two companies involved, OA Supplies and Caine Wizard, were neither authorized to market nor licensed to sell or manufacture active pharmaceutical ingredients. The investigation revealed no evidence of business records. There was no client list. There was no record of deliveries.

When S and H were arrested, a number of mobile phones were seized. Their memories were interrogated. There were messages which the prosecution say relate to the sale of chemicals and pharmaceuticals. Some of the purchasers were identifiable. The police were able to trace eleven of them. The police also seized H's "Sat. Nav." and interrogated its memory.

The prosecution allege that these eleven customers were, at the relevant time, drug dealers who had an obvious and illegal use for cutting agents. They produced a schedule of customers setting out in summary form the evidence in support of their allegation. By way of example, the first alleged customer was C.M. He had been arrested on the 25^th February 2010. Cocaine was found at his premises. He was subsequently convicted of possession of that cocaine with intent to supply. His address was a destination in H's "Sat. Nav". An SMS text from S's phone shows the supply of pharmaceuticals to C.M.

The defence objected to the admission of this evidence. The Judge ruled that the evidence was evidence of bad character but that it "had to do with the alleged facts of the offence with which the defendants were charged" and consequentially admissible under section 98(a) of the Criminal Justice Act 2003. He also ruled that if he was wrong as to that, then the evidence was admissible under section 100(b), in that it had substantial probative value in relation to a matter which was a matter in issue in the proceedings and was of substantial importance in the context of the case as a whole.

The argument advanced in this Court by the applicants can be summarised thus:

a) This evidence is not to do with the alleged facts of the offence.

b) The evidence had no substantial probative value in relation to a matter in issue in the proceedings as there was no evidence to show that S and H knew any of the facts set out in the customer schedule. It was argued that such knowledge was a prerequisite to admissibility.

c) That some of the evidence did not relate to the period specified in the particulars of the charge and that some of the convictions did not relate to drug matters at all.

Does the Customer evidence have to do with the alleged facts of the offence charged? The words "to do with the alleged facts of the offence charged" have a wider meaning than the elements of the offence which the prosecution must prove in order to establish guilt. That wider meaning will necessarily include the elements of the offence but will also encompass the evidence by which those elements are proved. An indictment for murder will simply aver that D murdered V. That D illegally purchased the gun with which V was shot is not an element of the offence but most certainly is "to do with the alleged facts of the offence charged".

We have been referred to a number of authorities, but no clear set of principles is identifiable. That is because whether or not evidence "has to do with the alleged facts of the offence charged" is quite simply case specific. The suggestion that there must be a nexus in time between the offence and the alleged bad character evidence (see Tirnaveanu [2007] EWCA Crim 1239) may not be helpful. In the example given above, the purchase of the gun may have occurred weeks, months or even years before the killing.

Nonetheless, the factual elements of the offence are a sensible starting point. The elements of count 1 are:

a. That S and H supplied benzocaine, lignocaine, hydrochloric acid, sulphuric acid and other chemicals and pharmaceuticals as cutting agents.

b. That their act of supplying was capable of assisting one or more offences of supplying or being concerned in the supply of Class A or Class B controlled drugs.

c. That S and H believed that one or more of those offences would be committed, and

d. That their act of supplying would assist in the commission of one or more of these offences.

As it seems to us, the customer evidence is relevant to each element. It is an obvious inference that if these chemicals and/or pharmaceuticals were to be supplied to a drug dealer, they would be used as a cutting agent. Why else would a drug dealer want them? Consequently, the act of supply assisted or was capable of assisting one or more of the specified offences.

The more customers of S and H who are proved to be drug dealers, the more likely it is that S and H knew the true purpose for which the drugs were required. The converse applies. The more legitimate customers S and H can show they had, the less likely it is that they would have known of the odd bad apple. If there is no evidence on which a jury could properly conclude that a defendant knew about the drug dealing history of the customers, then that evidence must, we think, be ignored in deciding whether that defendant had the necessary beliefs required for the section 46 offence and the jury will have to be directed accordingly or the evidence excluded.

We are quite satisfied that the Judge was right to admit this evidence under section 98(a), but we make it clear that we are not approving every aspect of the customer schedule. On the face of it, the fact that JS (no 4) was convicted of kidnap does not support the prosecution case, nor do convictions for simple possession of cannabis and cocaine in 2001 and 2002 (RW no 6). However we have not heard detailed argument as to this, and these are matters properly left to the trial judge.

This ground of appeal is dismissed.

Restrictions on publication

Subject to the views of counsel, we are minded not to restrict the publication of paragraphs 1-94 but to restrict the publication of paragraphs 95-108 pending the conclusion of the trial or further order.

Note 1   An attempt to commit an offence is not an offence to which section 45 and 46 apply: see section 49(4) and Part 2 of Schedule 3.     [Back]

Note 2   6A was added by amendment and applies to Northern Ireland.    [Back]

Note 3   Section 46 can only be tried on indictment: see section 55(2).    [Back]

Note 4   Provision is made by section 57 for verdicts in relation to lesser included offences. For example, if the offence specified in the indictment is murder, then that would include manslaughter.    [Back]

Note 5   In the instant case the prosecution have sensibly chosen “assisting” rather than “encouraging”.    [Back]

Note 6   An extraordinary example said to be an application of this subsection is to be found in the Explanatory Notes to Part 2, para. 159.     [Back]

Note 7   If the reference offence is an either way offence then the maximum term is that provided on conviction on indictment, ss (9).    [Back]

Note 8   Common assault is not for the purposes of Part 2 an included offence if the specified offence is murder (see section 57(10).     [Back]

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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> S & H v R [2011] EWCA Crim 2872 (13 December 2011) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2011/2872.html Cite as: [2011] EWCA Crim 2872, [2012] Crim LR 449, [2012] 1 Cr App R 19, [2012] 1 WLR 1700, [2012] 2 All ER 793